Stevenson v. Stoufer ( 1946 )

Plaintiff's petition alleges that, pursuant to the Emergency Price Control Act of 1942, 50 U.S.C. App., section 901 et seq., the administrator of the O.P.A. issued on December 1, 1942, Maximum Rent Regulation No. 58a for the Omaha Defense-Rental Area; on June 1, 1943, said regulation was amended to include Pottawattamie county; it fixed the maximum rent for hotels and rooming houses as the highest rent during the thirty-day period ending March 1, 1942; defendant operates the Ogden Hotel in Council Bluffs, Iowa; during the thirty-day period ending March 1, 1942, Room 323 in said hotel was rented for $2.75 per week; during the period from December 1, 1942, to August 2, 1943, a period of thirty-five weeks, defendant demanded of and received from plaintiff's decedent $3.50 per week for the occupancy of said Room 323; decedent died October 18, 1943; plaintiff was appointed administrator of his estate on January 22, 1944, and qualified as such. The prayer of the petition demanded $1,750 ($50 for each overcharge of seventy-five cents), attorney's fees, and costs.

The defendant filed a motion to dismiss the action, asserting, among other things, that the plaintiff seeks to recover $1,750 for alleged overcharges totaling but $26.25; the action is for a penalty; the act does not provide for the survival of the action; it did not survive and plaintiff is without right to maintain it. The court sustained the motion and dismissed the action. Plaintiff appeals to this court.

[1] I. Appellant cites and relies upon sections 10957 and 10959, Code, 1939, relating to survival of actions. These statutes do not apply to a cause of action created by federal statute. 1 C.J.S. 183, section 135, states the rule thus:

"The statutes of the United States not having prescribed what causes of action shall survive, it has been held that, where a cause of action is given by a federal statute, and no specific provision is made by act of congress for its survival, it survives or not according to the principles of the common law, and not according to the statutes of a state; but if there are any federal statutes relating to the subject, they are controlling."

In Schreiber v. Sharpless, 110 U.S. 76, 80, 3 S. Ct. 423, 424,28 L. Ed. 65, 66, the court states:

"The personal representatives of a deceased party to a suit cannot prosecute or defend the suit after his death, unless the cause of action, on account of which the suit was brought, is one that survives by law. Rev. Stat. § 955. At common law actions on penal statutes do not survive (Com. Dig. tit. Administration, B. 15), and there is no act of Congress which establishes any other rule in respect to actions on the penal statutes of the United States. The right to proceed against the representatives of a deceased person depends not on forms and modes of proceeding in a suit, but on the nature of the cause of action for which the suit is brought. If the cause of action survives, the practice, pleadings, and forms and modes of proceeding in the courts of the State may be resorted to in the courts of the United States for the purpose of keeping the suit alive and bringing in the proper parties. Rev. Stat. § 914. But if the cause of action dies with the person, the suit abates and cannot be revived. Whether an action survives depends on the substance of the cause of action, not on the forms of proceeding to enforce it. As the nature of penalties and forfeitures imposed by acts of Congress cannot be changed by State laws, it follows that State statutes allowing suits on State penal statutes to be prosecuted after the death of the offender, can have no effect on suits in the courts of the United States for the recovery of penalties imposed by an act of Congress."

See, also, Bowles v. Farmers Nat. Bk., 6 Cir., Ky., 147 F.2d 425.

[2] II. Appellant contends that the act provides for survival of this action. The federal courts have expressly held otherwise. Bowles v. Farmers Nat. Bk., supra.

[3] III. By reason of the foregoing, the question whether this cause of action survives must be determined by the principles of the common law. The common-law rule is stated in 1 Am. Jur. 89, section 128, thus:

"A cause of action for the recovery of a penalty does not survive the death of the wrongdoer, being in its nature personal."

And, in 23 Am. Jur. 622, 623, section 27, it is stated:

"The term ``penalty' is commonly used as constituting an extraordinary liability to which the law subjects a wrongdoer in favor of the person wronged, such liability not being limited to the damages suffered."

The decisions of this court support both of these statements.

In Miller v. Chicago N.W. Ry. Co., 59 Iowa 707, 711,13 N.W. 859, and Moriarty v. Central Iowa Ry. Co., 64 Iowa 696, 700,21 N.W. 143, we held that a statute imposing double damages was penal in nature. In Herriman v. Burlington, C.R. N.R. Co.,57 Iowa 187, 192, 9 N.W. 378, 10 N.W. 340, we held that a statute imposing quintuple damages provided for a penalty. In Bond v. Wabash, St. L. P. Ry. Co., 67 Iowa 712, 716, 25 N.W. 892, Baker Wire Co. v. Chicago N.W. Ry. Co., 106 Iowa 239, 243,76 N.W. 665, and Clark v. American Exp. Co., 130 Iowa 254, 258,106 N.W. 642, we held that a statute imposing treble damages provided for a penalty. In the recent case of Stark v. Ginsberg, 236 Iowa 735, 18 N.W.2d 627, we held that, where recovery was sought under the same statute now before us for $50, whereas the actual damages were but $3.28, the demand included exemplary damages in addition to actual damages. Certainly, under such decisions, this action, which seeks a recovery that is sixty-six times the actual damages, seeks to enforce a penalty.

[4] In construing the very question now before us — whether a demand for a penalty or exemplary damages survives — we squarely held, in Sheik v. Hobson, 64 Iowa 146, 19 N.W. 875, that the right to such damages did not survive the death of the wrongdoer either at common law or under our survivorship statute. And, in the case of Union Mill Co. v. Prenzler, 100 Iowa 540, 546,69 N.W. 876, we held that the same rule prevailed at common law where the person wronged was deceased unless the action was commenced during his lifetime. Here the action was brought after the death of the tenant who was overcharged. Hence, under the common law as expressly recognized by this court, the right to exemplary damages or a penalty did not survive.

IV. There are cases which hold that, since this action was created by federal statute, the decisions of the federal courts are controlling as to the common-law principles that should be applied thereto. Practically all of such cases were decided during the period that the rule of Swift v. Tyson, 16 Pet. (U.S.) 1, 10 L. Ed. 865, was applied by the federal courts. It is difficult to apply such decisions in view of the fact that Swift v. Tyson was overruled by Erie R. Co. v. Tompkins, 304 U.S. 64,58 S. Ct. 817, 82 L. Ed. 1188. However, as we interpret the decisions of the federal courts, we are convinced that the trial court was right herein.

In the case of Schreiber v. Sharpless, supra, 110 U.S. 76, 79,3 S. Ct. 423, 28 L. Ed. 65, 66, heretofore quoted, the supreme court squarely held that an action for a penalty would not survive. And, under repeated decisions of the federal courts, the trial court was clearly right in holding that this action, to recover $1,750 for overcharges totaling $26.75, is to recover a penalty.

In the case of Helwig v. United States, 188 U.S. 605, 613,23 S. Ct. 427, 430, 47 L. Ed. 614, 617, the court defines a statutory penalty thus:

"Although the sum imposed by reason of undervaluation may be simply described as ``a further sum' or ``an additional duty,' if it is yet so enormously in excess of the greatest amount of regular duty ever imposed upon an article of the same nature, and it is imposed by reason of the action of the importer, such facts clearly show it is a penalty in its intrinsic nature, and the failure of the statute to designate it as a penalty, but describing it as ``a further sum,' or ``an additional duty,' will not work a statutory alteration of the nature of the imposition, and it will be regarded as a penalty when by its very nature it is a penalty. It is impossible, judging simply from its language, to hold this provision to be other than penal in its nature."

In the case of Thierry v. Gilbert, 1 Cir., Mass., 147 F.2d 603, 604, where there was no question of survival involved, the action was directly analogous to that now before us but for that one feature, and the First Circuit Court of Appeals described it thus:

"This is an action by a tenant to recover from his landlord thestatutory penalty provided in § 205 (e) of the Emergency Price Control Act of 1942, 56 Stat. 23, 50 U.S.C.A. Appendix § 925 (e), on account of nine monthly overcharges of rent." (Italics supplied.)

In the case of Lambur v. Yates, 8 Cir., Mo., 148 F.2d 137, 139, the Eighth Circuit Court of Appeals, in a similar action by a tenant against his landlord, described the remedy invoked as in the nature of a "qui tam" law. Webster's New International Dictionary, Second Ed., defines "qui tam" thus:

"An action to recover a penalty under a statute which gives part of the penalty to the one bringing the action and the rest to the state or a public body. The plaintiff describes himself as suing as well for the state as for himself."

In the case of Bowles v. Farmers Nat. Bk., supra, 6 Cir., Ky., 147 F.2d 425, 428, the Sixth Circuit Court of Appeals holds that the statute now before us imposes a penalty and that an action therefore does not survive, the court stating:

"We think that the original enactment of this section clearly provided for a penalty. The basic test whether a law is penal in the strict and primary sense is whether the wrong sought to be redressed is a wrong to the public or a wrong to the individual. Huntington v. Attrill, 146 U.S. 657, 668, 13 S. Ct. 224,36 L. Ed. 1123. * * *

"The amount of such payments, if made to the injured person, supplies a direct and powerful incentive for the enforcement of the Act by the individual. Cf. Gilbert v. Thierry, 1944, D.C. Mass., 58 F. Supp. 235. As well stated in that case, the treble damages provision is intended to be sufficiently attractive to stimulate an aggrieved person to recover his losses and to enforce the law; and it is also intended to be sufficiently burdensome to deter potential violators and to punish actual violators.

"Moreover, if a sum of money is to be recovered by a third person for violation of a statute instead of the person injured, Huntington v. Attrill, supra, 146 U.S. 657, 668, 13 S. Ct. 224,36 L. Ed. 1123; State of Wisconsin v. Pelican Ins. Co.,127 U.S. 265, 299, 8 S. Ct. 1370, 32 L. Ed. 239, or if the sum exacted isgreatly disproportionate to the actual loss, Helwig v. United States, 188 U.S. 605, 611, 23 S. Ct. 427, 47 L. Ed. 614, it constitutes a penalty rather than damages. The fact that the sum is to be recovered in a civil action does not determine the nature of the exaction. Hepner v. United States, 213 U.S. 103,29 S. Ct. 474, 53 L. Ed. 720, 27 L.R.A., N.S., 739, 16 Ann. Cas. 960; United States v. Zucker, 161 U.S. 475, 16 S. Ct. 641,40 L. Ed. 777; Lees v. United States, 150 U.S. 476, 14 S. Ct. 163,37 L. Ed. 1150; Jacob v. United States, Fed. Cas. No. 7,157. * * *

"In case of recovery under § 205 (e), the sum to be paid is sogreatly in excess of the loss incurred that it cannot be explained except upon the theory that the statute intends to subject the wrongdoer to an extraordinary liability not limited to the damage suffered. Huntington v. Attrill, supra,164 U.S. 657 at page 667, 13 S. Ct. 224, 36 L. Ed. 1123. * * *

"Holding, as we do, that the action for recovery of a penalty does not survive, we conclude that the District Court correctly ruled that no cause of action was stated against this appellee, and correctly dismissed the complaint as to it." (Italics supplied.)

The holding of the First Circuit Court, in Thierry v. Gilbert, supra, and that of the Eighth Circuit Court, in Lambur v. Yates, supra, directly support the position taken by the Sixth Circuit Court in Bowles v. Farmers Nat. Bk., supra. In addition thereto, that case is supported by the following decisions of various federal district courts: Bowles v. Trowbridge, D.C., Cal.,60 F. Supp. 48; Bowles v. Nasif, D.C., La., 58 F. Supp. 644; Brown v. Glick Bros. Lbr. Co., D.C., Cal., 52 F. Supp. 913, 917; Bowles v. Beatrice Creamery, D.C., Wyo., 56 F. Supp. 805, 806.

The decision of the trial court was right. The cause is — Affirmed.

MANTZ, HALE, SMITH, and WENNERSTRUM, JJ., concur.

OLIVER, J., and BLISS, C.J., and MULRONEY and GARFIELD, JJ., dissent.